Hodgson & Anor v Minister for Primary Industries

[2001] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No H1 of 2001

B e t w e e n -

ALAN HODGSON and KEVIN TRETHOWAN

Applicants

and

MINISTER FOR PRIMARY INDUSTRIES, WATER & ENVIRONMENT

Respondent

Application for reinstatement of an application for special leave to appeal

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON THURSDAY, 15 NOVEMBER 2001, AT 4.30 PM

Copyright in the High Court of Australia

MR C.J. BOLAND:   May it please your Honour, I appear on behalf of the applicant.  (of Chris Boland Barristers & Solicitors)

MR F.C. NEASEY:   May it please the Court, I appear on behalf of the respondent.  (instructed by the Director of Public Prosecutions (Tasmania))

HIS HONOUR:   Yes, Mr Boland.

MR BOLAND:   At the outset, perhaps if I could indicate, Mr Neasey has indicated his position to me that he will not be consenting but nor does he oppose the application.  It may be on that that you do not wish to hear much from me, but ‑ ‑ ‑

HIS HONOUR:   I do not want to hear anything from you.  Mr Neasey, do you want to say anything?  I take it that you do not oppose and you do not support?

MR NEASEY:   That is my position, your Honour.  What Mr Boland said is correct.  We may have an argument about costs, however.

HIS HONOUR:   Yes, well we may have an argument about costs, but first of all I will deal with this matter.

This is a summons for an order that an application for special leave to appeal be deemed not to be abandoned by reason of non‑compliance with Order 69A, rule 10(9)(b) of the High Court Rules.  In my opinion, the order should be made.  Mr Neasey, who appears for the respondent, does not oppose the making of the order; nor does he support it.

The background of the matter is this: the applicants applied for fishing licences in the State of Tasmania. A delegate of the Minister for Primary Industries, Water and Environment of Tasmania refused to grant the licences. The applicants then sought review of that decision in accordance with section 281 of the Living Marine Resources Management Act 1995 (Tas). Another delegate, after undertaking a review of the matter, confirmed the decision, but instead of the licences sought granted licences in a different category.

Under section 283 of the Act, the applicants appealed from that decision to the Resources Management and Planning Appeal Tribunal.  The Tribunal ruled that it had no power to review the relevant decision.  The applicants then appealed from the Tribunal to the Supreme Court of Tasmania where the matter was heard by Justice Slicer who ruled that the Tribunal did have jurisdiction in respect of the matter.

The respondent to this summons, however, then successfully appealed to the Full Court of the Supreme Court.  From that Full Court decision, the applicants sought special leave to appeal.  As a result of their failure to comply with Order 69A rule 10(9)(b) of the High Court Rules, the application for special leave has been deemed to be abandoned.  A certificate to that effect has been given. 

To demonstrate why, in my view, this is a clear case for the reinstatement of the application, it is necessary to refer to the history of the matter, so far as it appears from the affidavit of Mr Boland, the solicitor for the applicants, and the Court’s file.

On 1 March 2001 the applicants filed their application for special leave in this Court.  On 30 March, Mr Boland faxed to the respondent’s solicitor, who was the Director of Public Prosecutions, the applicant’s summary of argument, an affidavit of Mr Boland and a draft notice of appeal.  Under the rules, the respondent should have filed his summary of argument by 20 April, 2001. 

On 29 May 2001, as Mr Boland had not received the respondent’s summary of argument, which was then well out of time, he sent a fax to the respondent’s solicitor inquiring as to when he would receive the respondent’s summary of argument.  Eight days later, on 6 June, the respondent’s solicitor still had not responded, when Mr Boland wrote to Deputy Registrar Musolino requesting that she proceed to list the matter, notwithstanding the respondent’s failure to file a summary of argument. 

On 19 June 2001 the applicants received the respondent’s summary of argument, which was then about two months out of time.  On 27 June, the applicants received a draft index from the Deputy Registrar requesting that it be confirmed on or before 11 July 2001.  On the following day – 28 June – Mr Boland confirmed that the index was acceptable.

Then on 13 July this year, the Deputy Registrar faxed a copy of the settled index to Mr Boland.  She advised him that he should ensure that seven copies of the application book were filed and that three copies should be served on the respondent on or before 13 August 2001.  On 8 August 2001, Mr Boland attended the Registry of the Supreme Court of Tasmania to file the application book.  The Supreme Court of Tasmania acts as the Registry for the High Court of Australia in Tasmania.  Mr Boland spoke with a Registry officer named O’Neal, who apparently was not familiar with the process of filing High Court documents.  Mr O’Neal suggested that a copy of the documents should be faxed to the Deputy Registrar of the High Court in Melbourne to confirm that the books were in order prior to filing.

That same day, extracts from the book were faxed to the Deputy Registrar.  She was asked to confirm that they were in order prior to filing.  Five days later, that is to say on 13 August 2001, Mr Boland rang the Melbourne Registry to speak with the Deputy Registrar.  He was advised that she was interstate, and no one else could assist with his inquiry until the following week.  The following day, on 14 August, Mr Boland decided to file the application books anyway, notwithstanding that he had not received confirmation from the Deputy Registrar.  He attended the Registry in Hobart, explained his dilemma to Mr O’Neal, who then accepted them for filing and sent them on to the High Court Registry in Melbourne.

On or about 17 September 2001, Mr Boland asked his secretary to telephone the Deputy Registrar in Melbourne and inquire as to whether he would receive a sealed copy of the application books so that he could effect service of them.  His secretary later told him that she had spoken to the Deputy Registrar, who advised her that she had received the application books – they were in order – but that it was not the practice of the High Court to return a sealed copy to be served on the respondent.  Having received that information, Mr Boland then proceeded to have further copies of the application book compiled so as to serve them on the solicitor for the respondent.  In fact, the following day, on 21 September, the application books were sent with a letter to the respondent’s solicitor, although it may be that they were not received in the office of the Director of Public Prosecutions until 25 September, 2001. 

On 25 September – and, I might note, following receipt of the application books – the respondent’s solicitor wrote to Deputy Registrar Musolino.  He requested, pursuant to Order 69A rule 13, that she give a certificate of deemed abandonment on the ground that the applicants had failed to comply with Order 69A rule 10(9)(b) because the application books had not been served on the respondent in time.  After telephone conversations between Mr Boland and the Deputy Registrar, Mr Boland was informed by the Deputy Registrar that she had no discretion to refuse the application for certificate. 

On 16 October, the Deputy Registrar issued a certificate, as the applicants had not applied for an extension of time before the expiration of six months and she had no discretion to refuse the application for the certificate.

It is against that background that in the summons the applicant seeks three orders:

1.  That the application for special leave dated 1 March 2001 be re‑instated.

2.  That the time for service of the application book be extended until 25 September 2001.

3.  That the costs of this Summons be costs in the cause. 

Order 69A rule 10(9) provides that:

Within 30 days after the receipt of the index, or such further time as a Justice or the Registrar may order or direct, the applicant shall:

(a)  prepare and file 7 copies of the application book; and

(b)  supply 3 copies of the book to each respondent.

Order 69A rule 13 provides for a failure to comply with Order 69A rule 10(9).  It provides:

Where an applicant fails to comply with –

among other subrules -

subrules . . . 10(9) within six months after filing the application, the application shall be deemed to be abandoned, unless the Court or a Justice or Registrar has otherwise ordered or directed.

Order 69A rule 13(2) provides that:

On a request by the respondent, a certificate of deemed abandonment shall be provided by the Registrar and thereupon –

certain subrules -

shall apply.

However, Order 60 rule 6(1) of this Court’s Rules provides that:

A Court or Justice may enlarge or abridge the time appointed by these Rules or fixed by an order of the Court or a Justice for doing an act upon such terms, if any, as the justice of the case requires.

Order 60 rule 6(2) provides that:

An enlargement of time may be ordered although the application for it is not made until after the expiration of the time appointed or fixed.

Plainly, enlarging time under Order 60 rule 6(1) is a discretionary decision of the “Court or a Justice”.  But, in my view, having regard to the facts which I have outlined, this is a case that clearly calls for the exercise of the discretion in favour of the applicants.

First, the delay itself was not long; in fact it was less than a month.  Applications involving considerably longer delays have been granted in this Court.  For example, in Australian Frontier Holidays Ltd v Williams, a decision of Justice Callinan given on 31 August 2000, there was a delay of over 167 days, yet an order was made by his Honour.

Second, the delay, in part, was due to the respondent himself, who was late in filing his summary of argument.  As I pointed out, the respondent ought to have filed his summary of argument within 21 days of service of the applicants’ summary of argument, which was served on, as I said, 30 March 2001.  However, he did not file his summary until 19 June.

Third, there is no prejudice to the respondent.  He has had the applicants’ summary of argument since 30 March 2001; he has had the settled index to the application book since some time in July; and his solicitor received the application books on the very day that he requested the Deputy Registrar to provide a certificate of abandonment.

Fourth, to some little extent, the delay was also partly due to the unavailability of the Deputy Registrar who was absent in Adelaide for the High Court sittings during the week that the books should have been filed. There was nobody else, apparently, at the Melbourne Registry who was able to answer the inquiries of Mr Boland.

Fifth, as soon as the solicitor for the applicants appreciated his misunderstanding that the High Court provided sealed copies of application books for delivery or service, he immediately took steps to serve copies on the respondent.

Sixth, although it is always a relevant matter, in exercising a discretion to extend time, to consider the prospects of success in the matter, I would regard consideration of that point in this particular case to be of minimal significance.  In any event, it can be said in favour of the applicants that Justice Slicer found for them in the Supreme Court and that the matter must be regarded as at least reasonably arguable.

Finally, the matter is ready for hearing.

For these reasons, I propose to make orders 1 and 2 of the summons. 

Mr Neasey, what do you want to say about the order for costs?

MR NEASEY:   Your Honour, I understand that the applicants have in their application sought an order that costs be costs in the cause.  In my submission, Order 60 rule 6(3) contemplates, prima facie, costs shall be borne by the party making the application, subject, of course, to the Court’s discretion.  But, ordinarily, I submit that the rule contemplates that it follows that costs of an application of this kind are borne by the applicant, because, it would seem, it is the applicant who is seeking the exercise of a favourable discretion, and it is only just that it pays for the privilege.  Of course, it is subject to your Honour’s overriding discretion to order otherwise but, in my submission, there are no circumstances in this case that warrant the exercise of a discretion to the contrary of the prima facie position.

HIS HONOUR:   Well, you have come along here not even to support it, and I must say, I am very surprised that a Minister of the Crown, given the history of this matter and given his own delay in this matter – and breach of the Rules would not support this application.  The Minister can hardly be regarded as a model litigant in this respect.  I would have expected a different approach from a Minister of the Crown in respect of a case in which two citizens of Tasmania are seeking justice.  Their application may be good or may be bad, but after the Minister had delayed two months in filing his summary of argument, and then an application is made for a certificate of abandonment on the very day that the books are filed. 

Mr Neasey, I appreciate that you, in the position you have and as a solicitor appearing for a public officer, is entitled to insist on the strict compliance of the law.  But I must say I am surprised at the attitude of your client.  I assume you are acting on instructions. 

MR NEASEY:   That is so, your Honour.  I can indicate the essential reason for not consenting to this application is because, as I understand it, there has been authority either issued by this honourable Court or the Full Court of our State, to the effect that the Rules as to time have to be complied with.  There has been some displeasure expressed, as I understand it, on some occasions with consent being given too easily to applications of this nature.  It was considered, in all the circumstances, that the most appropriate and the most reasonable position to take was to not consent, but to not oppose, in the knowledge that in all likelihood the application would be granted and, of course, it has been.

So I appreciate the comments that your Honour has made, but, with great respect, I still submit that our position has not been an unreasonable one.  Your Honour, can I make one brief point in reply, and it goes to the matter of our delay with respect to the filing of the respondent’s argument.  In my submission, that is, with respect, of little relevance because when the index was received on 13 July by the applicants’ solicitors, they still had their full 30 days allowed by the ‑ ‑ ‑

HIS HONOUR:   Of course they did, but this point would never have arisen probably, if you had acted in accordance with the rule.  They would have been two months further down the tracks, and they were only a month out of time in any event.  So even if they had made all the errors that they had made, they would still have filed this within time if you had complied with your obligations.

MR NEASY:   Yes, that is so, your Honour.  It is more likely that six months would not have elapsed, but the point I make is that the full 30 days, as allowed by the Rules, was available to them, and it was primarily their own fault that that period passed, but I appreciate the point your Honour is making.

HIS HONOUR:  Yes, thank you, Mr Neasey.  Have you finished, Mr Neasey?

MR NEASEY:   Yes, I have, your Honour, thank you.

HIS HONOUR:   What do you say, Mr Boland?

MR BOLAND:   Thank you, your Honour.  I cannot echo any more than what your Honour has put.  In my view it would be appropriate and fairness be done to the parties in this instant if costs be costs in the cause.  It seems entirely appropriate in view of all the matters that your Honour has raised openly with Mr Neasey and myself.

There is one matter that I, in listening to the chronology that you put back to me – perhaps I need to seek a further order for completeness and I would seek leave to amend the summons and I would propose it as order 1A that the time for filing of the application book be extended to 14 August.  I do not want to get into the position now where there is another letter to the Registry saying, “We have reinstated the application for special leave because service of the application book was out of time” but then I am confronted with another certificate of abandonment because the filing was one day late.

HIS HONOUR:   Would you tell me again what the order is that you seek?

MR BOLAND:   Order 1A, that the time for filing of the application book be extended until 14 August 2001.  I think technically it should have been filed on the 13th but because of the problems I had, and your Honour has gone through, I did it one day late.  I do not want to go through this circus again if I can avoid it.

HIS HONOUR:   Yes.  Mr Neasey, what do you say about amending the summons to cover that matter?

MR NEASEY:   I do not object to that application, your Honour.

HIS HONOUR:   Yes, thank you, Mr Neasey.  Yes, I will make the following orders:

1.   That the application for special leave dated 1 March 2001 be reinstated;

2.   That the time for filing the application books be extended until 14 August 2001;

3.   That the time for service of the application books be extended until 25 September 2001;

4.   That the costs of the summons be costs in the cause; and

5.   Certify for counsel.

Is there any further order that either party requires?

MR BOLAND:   Not from the applicants, your Honour, thank you.

MR NEASEY:   Not from the respondents, your Honour.

HIS HONOUR:   Yes, thank you, Mr Boland.  Thank you, Mr Neasey.  Adjourn the Court.

AT 4.59 PM THE MATTER WAS CONCLUDED